Robert Lewin v Nicholas Gray

The claimant, a self-employed roofer, suffered catastrophic injuries after falling through a fragile barn roof while installing guttering. The claim pleaded negligence and alleged breaches of the Construction (Design and Management) Regulations 2015 (notably regulation 4) together with occupiers' duties under the Occupiers Liability Act 1957. The court found that although the defendant had not complied with the CDM 2015 obligation to ensure a construction phase plan was produced, Section 47 of the Health and Safety at Work etc Act 1974 (as amended) removes the actionability of breaches of such regulations and the circumstances did not justify imposing an analogous common-law duty. The judge also found the claimant was experienced, made reasonable choices (use of crawling boards, decision to receive guttering through the gap) and that it was not probable that a written construction phase plan would have led to the placement of a crash deck; consequently the claim fails. As an alternative and on the assumption liability existed, contributory fault of 75% was apportioned to the claimant.

Background and parties: The claimant was a self-employed general builder with roofing experience. The defendant was a self-employed farmer who engaged the claimant to replace guttering on a barn with a known fragile roof. The claimant fell through the roof on 18 January 2018 and became paraplegic.

Nature of the claim: The claimant sued in negligence and relied on breaches of statutory duties (CDM 2015) and occupiers' duties under the Occupiers Liability Act 1957. Liability was tried as a preliminary issue.

Issues framed by the court:

• Whether the defendant owed a tortious duty to ensure the claimant produced a construction phase plan (regulation 4(5) CDM 2015) or analogous common-law duties.
• If such a duty existed, whether failure to require a plan causally contributed to the accident.
• Secondary questions of the facts: mechanics of the fall, prior use of a JCB man-basket (Mapro) as a crash deck, and apportionment if liability arose.

Key factual findings:

• The defendant did not position a JCB man-basket as a crash deck in the area where the claimant worked; prior use of a crash deck was by the defendant's late father and not by the defendant himself.
• The claimant and his son used crawling (batten) boards on the fragile roof; the claimant stood on a board to pull guttering through a tight gap and fell through.
• The choice to receive the guttering through the narrow gap from the fragile roof was, on the facts, a reasonable decision for an experienced roofer.

Court's reasoning: The court accepted the existence of breaches of the CDM Regulations but held that Section 47 of the Health and Safety at Work etc Act 1974 (as amended by the Enterprise and Regulatory Reform Act 2013) means breach of the Regulations is not actionable in civil proceedings except as provided. The judge declined to extend the common law to create a duty equivalent to regulation 4(5) in the circumstances of this one-man contractor/client relationship. The court considered authorities cited by both parties, applied the Caparo foreseeability/proximity/just, fair and reasonable test and concluded that it would not be fair, just and reasonable to impose a civil duty to require a written construction phase plan. The judge also found it improbable that requiring a written plan would have led the claimant to ask for a crash deck in the facts of this case, so causation was not established. On apportionment, had liability been found, the claimant was assessed 75% to blame for his own injuries.

Wider context: The judgment emphasises the statutory bar on actionability for breaches of health and safety regulations and shows the court will be cautious about importing regulatory duties into common law absent authoritative support.

The claim is dismissed. The judge held that although the defendant failed to comply with duties in the CDM 2015 (notably regulation 4(5)), Section 47 of the Health and Safety at Work etc Act 1974 (as amended) precludes civil liability for breaches of those regulations in the circumstances of this case and it would not be fair, just and reasonable to impose an equivalent common-law duty on the defendant. The court also found it not probable that asking for a written construction phase plan would have resulted in provision of a crash deck that would have prevented the accident. The judge assessed contributory fault at 75% against the claimant if any liability were to be found.